Author Archive for
Duncan Hollis

Alfred P. Rubin: The Best Professor I Ever Had

by Duncan Hollis

For those of us fortunate enough to end up with a career in international law, we all have our mentors, our guiding lights.  Mine was Professor Alfred P. Rubin of the Fletcher School.  He died last week.  I write to express my condolences to his family and friends and offer a few words on his influence on my life as well as the whole Fletcher community, where he taught for 30 years.  Simply put, I would not be an international lawyer — let alone a professor of international law — had Professor Rubin not pushed, encouraged, and inspired me onto my current path.  He was the best professor I ever saw grace a classroom.

Truth be told, when I arrived at Fletcher in the Fall of 1993, I had no expectations of a career in international law.  I had enjoyed studying it as an undergraduate at Bowdoin with Allen Springer (a former student of Professor Rubin as it turned out).  But I’d applied to Fletcher to study Japan, not law; I had four years of Japanese language classes under my belt and had just finished a summer internship in Osaka.  To complete my joint degree, however, I still needed four law-related courses. LAW 200: The International Legal Order looked interesting.  I was a bit wary of an early morning class 3 days a week, including Fridays, plus an unusual year-long course structure. Still, Rubin’s classes were legendary so I decided to take it during my first semester.

In what was a trademark for his contrarian demeanor, Professor Rubin started off our first class with a simple, but powerful, challenge — insisting that there is no such thing as human rights.  An Australian classmate took the bait, and responded that they must exist, to which Professor Rubin pushed back, asking if human rights existed as law or morality.  That generated a fairly intense discussion on what law “is”, who should decide the law’s contents and by what processes.  Fifty minutes later, I was hooked.  LAW 200 became my favorite class. I would actually wake up happy on class days, eager to see what the morning’s discussion might hold — the Trent Affair’s illumination of customary international law, the divine law origins of treaties (which I’ve made use of subsequently), or one of my favorite casesMortensen v. Peters. We wrestled with the (in)consistency of the ICJ’s approach to the South Africa question, the meaning of “genuine and effective links” for citizenship, plus older chestnuts like the Lotus case. Along the way, Professor Rubin moved us beyond doctrine to legal theory, asking us to work through various iterations of positivist and naturalist methods in original and neo-formulations.  We didn’t just read Hart, we went back to Kelsen (reading Kelsen being fairly atypical in American legal education).

The Spring semester brought piracy and thornier topics like recognition, succession, jurisdiction, and conflicts of law.  A few years later, Monroe Leigh (who along with Cynthia Lichtenstein were my other early mentors) took me on as his associate in part because I’d invoked the Fruehauf case from Rubin’s class to advise a client.  As the semester progressed, my classmates and I debated whether Professor Rubin’s tears in discussing the legality of the bombing of Hiroshima were real (they were) and marveled at how he cared about the “law” as a concept and detested hypocrisy in any form.  None of us will ever forget how Rubin ended the year — re-enacting the scene from A Man for All Seasons where Sir Thomas More responds to William Roper’s call for an arrest even if it means cutting a road through the law to get after the Devil:

Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, the laws all being flat? This country is planted thick with laws, from coast to coast, And if you cut them down, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Two decades later, I’m still trying to figure out Professor Rubin’s secret ingredient — the persistent Socratic dialogues, the deep dives into doctrine, the marshaling of legal theory in concrete cases, or that undeniable passion for his subject-matter. It may have been something as simple as his gentle voice — a slight hesitancy in speech with an ever-present inquisitive tone.  I confess that my study group spent hours imitating that voice (one of us who shall remain nameless with much success).  We did so without any sense of hostility or meanness — but rather as a mark of our affection for his teaching and our sense that his class was a shared experience.  And it was not by any means an easy one — the reading assignments were enormous with Rubin assuming we all knew the material so we could take the class discussion to a more critical level. I still have my notes (the only ones that I’ve kept). I was amazed to revisit them yesterday to see just how much we covered that year in history, doctrine and theory.  I’ve never had another class like it.

Beyond the classroom, Professor Rubin was a thoughtful adviser.  Conveniently located on the way to the cafeteria, his office door was always open.   He welcomed students in to ask questions about class or the oft-discussed career question – “So, exactly, how does one become an international lawyer?”  He never rushed students off (even if we’d interrupted one of his many Minesweeper computer games). I treasured those conversations, and the chance to soak in his knowledge, his experience, and his many, many books. I have a shelf-long collection of green volumes of the American Journal of International Law in my office today for no other reason than Rubin had one.  In later semesters our conversations deepened and I gained insights into key sources and research methods.  To this day, I’m reluctant to cite a secondary source when a primary one is at hand since I picture Professor Rubin watching over me and shaking his head, reminding me he expects nothing less.

I will always be most indebted to Professor Rubin for his willingness to go beyond advice to action. In the summer of 1994 I was (unhappily) a temporary secretary in Suffolk University’s physical plant. The job was in the sub-basement below the actual basement.  It was hard to see how this was going to advance my dreams of becoming an international lawyer until I got a call from Jeffrey Bates, a partner at Goodwin Proctor at the time.  Another former student of Rubin’s, he needed a legal clerk to do some research, and Professor Rubin had recommended me. Overnight, I transferred onto a large and intensive research project that laid the foundations for all that followed.  I have no doubts that the Goodwin clerkship made it possible for me to join Steptoe and Johnson as an associate, which in turn led me to the State Department, and eventually Temple Law.  All this from one recommendation by Professor Rubin (a recommendation I’d not even asked him to make).  Nor am I alone in this experience.  Generations of Fletcher students sought out the Rubin experience and found themselves entering the field of international law in one way or another. From that introductory class alone, four of us spent time in the Legal Adviser’s office at the U.S. Department of State; others ended up at the United Nations, in foreign ministries, and private practice.  At least three of us followed his path into the academy to teach international law.

Having been a member of international law’s “invisible college” for a few years, I know that Professor Rubin was regarded by other law professors as an academic, known for his work on piracy and unilateral declarations, and some ferocious commentary from the floor at the American Society’s Annual Meeting.  For my part, however, I choose to remember Professor Rubin as a teacher.  In later years, we kept in touch until his health began to fail.  He’d ask me to call him by his first name, Al.  I couldn’t do it.  He was and will always be my professor of international law.  A gentleman, a scholar, but above all a teacher.  May he rest in peace.

ASIL Names New Executive Director: Mark Agrast

by Duncan Hollis

Those readers who are members of the American Society of International Law know how critical the role of its Executive Director is and how great a job the previous director, Betsy Andersen did since taking on the role in 2006.  Betsy left ASIL earlier this year to run the ABA’s Rule of Law Initiative, and my former colleague from the State Department, Ron Bettauer, has been serving as an Interim Director for the last several months.  Today, I’m pleased to report ASIL announced the hiring of its newest Executive Director, Mark Agrast.  Here’s the highlights from ASIL’s news release:

The American Society of International Law (ASIL) announces the appointment of Mark D. Agrast to serve as the Society’s eighth executive director beginning October 20, 2014 . . . Agrast, who is an ASIL member, currently serves as deputy assistant attorney general in the U.S. Department of Justice’s Office of Legislative Affairs, where he has worked since 2009. . . Prior to joining the Justice Department, Agrast was a senior vice president and senior fellow at the Center for American Progress from 2003 to 2009, and from 1992 to 2003 he held senior staff positions with two members of the U.S. House of Representatives.  Agrast previously practiced international law with the Washington office of Jones Day.  He also has served in numerous leadership capacities in the ABA, including as a member of its Board of Governors and its Executive Committee, a past chair of the Section of Individual Rights and Responsibilities and the Commission on Immigration, and current chair of the Commission on Disability Rights.  He is a longtime member of the ABA’s House of Delegates.  Agrast has co-chaired the National Lesbian and Gay Law Association (now the National LGBT Bar) and served as that organization’s ABA Delegate.  He has also been a leader of the World Justice Project since its inception and has played a central role in designing and implementing its Rule of Law Index, a quantitative assessment measure of the extent to which countries adhere to the rule of Law.  Agrast graduated summa cum laude from Case Western Reserve University, pursued his postgraduate studies as a Rhodes Scholar at the University of Oxford, and received his J.D. in 1985 from Yale Law School, where he was editor in chief of the Yale Journal of International Law. 

 

IHL’s Era of Application?

by Duncan Hollis

Today marks the 150th Anniversary of the signing of the first Geneva Convention — the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.  12 States signed it on August 22, 1864, and the treaty went on to have 57 parties before being replaced by later Geneva Conventions in 1906, 1929 and 1949.  The ICRC is using the occasion to make a call for more action on international humanitarian law and to spread knowledge about that law more generally (including a 4 minute video on the Rules of War in a Nutshell).  

It’s interesting to think about the full arc of IHL that this anniversary represents. It seems we’ve gone from decades of iteration — where States and others worked to hammer out what rules actually exist — to what is now much more an era of application.  Today’s IHL debates (many of which we’ve hosted here in recent weeks) regularly revolve around where, when and how specific rules apply to particular cases.  Or, they debate which rules exist only in treaty form versus those that have the status of customary international law.  Even in areas of new technology, the prevailing effort is to explain how existing rules govern by analogy (see, e.g., the Tallinn Manual).  These are all important and even laudatory causes.  But it does leave me with a question:  Is the corpus of IHL now largely complete, or should we expect another round of law generation akin to the Geneva Convention projects of 150 and 75 years ago?  Simply put, is there any new IHL to be made, and, if so, what should it be?   

Is Violating “Serious Obligations” of the INF Treaty the same as its “Material Breach”?

by Duncan Hollis

A few hours ago, the NY Times broke a story that the United States views Russian tests of a ground-launched missile as violating the 1987 INF treaty, formally (and lengthily) titled, “The Treaty Between The United States Of America And The Union Of Soviet Socialist Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles”.  According to the story, the State Department will publicly issue a report that says, among other things:

The United States has determined that the Russian Federation is in violation of its obligations under the I.N.F. treaty not to possess, produce or flight test a ground launched cruise missile (GLCM) with a range capability of 500 kilometers to 5,500 kilometers or to possess or produce launchers of such missiles,”

In addition, President Obama has notified Russian President Putin of the U.S. charges in a letter delivered today.

The U.S. move adds a new brick to the wall of tensions building in the U.S.-Russian relationship (others include Crimea, Russian support for Eastern Ukrainian separatists, the MH17 tragedy, not to mention Edward Snowden’s continuing presence in Moscow).  I assume the timing of the U.S. accusations is no accident.  Moreover, I find it interesting that in so many of these recent crises with Russia, the United States has consistently relied on law and legal argumentation to push against Russia’s actions (or inaction).  This case may be the most extreme example of such an approach since the issue here is entirely one of international law and treaty interpretation.  As such, it’s very much in the wheelhouse of Opinio Juris and its readers. I thought I’d start the conversation with a few preliminary thoughts (emphasis on the “preliminary” since we don’t have too many details to go on as yet).

For starters, the precise language used to describe Russia’s tests — a violation of its obligations under the I.N.F. Treaty” — appears quite significant (especially where it comes after reportedly extensive deliberation). Certainly, the concept of a violation is easy to grasp and has important political implications. For treaty lawyers, however, the term “violation” is not the language we’d expect to see where there’s non-compliance with a treaty’s terms. The Vienna Convention on the Law of Treaties (VCLT), which sets the customary international law rules in these cases, describes violations in terms of a treaty’s “breach”  More specifically, it articulates a set of remedies where breaches are “material” (see VCLT Article 60 here).  In this case, however, that key adjective — “material” — is nowhere to be found, suggesting the United States is not looking to invoke this VCLT provision.  But even if it were, in a move that has stumped generations of international law students, the VCLT’s remedies for a treaty’s material breach are quite limited — they entitle the non-breaching party to suspend or terminate its own obligations under the treaty in whole or in part (the VCLT also adds some procedural hurdles but these are largely ignored in State practice). Of course, there’s no evidence suggesting that the U.S. has any intention of suspending or terminating the INF Treaty; on the contrary, U.S. interests seem to lie squarely on keeping Russia obligated by the treaty as long as possible and forestalling any Russian move to withdraw from the INF Treaty (which Article XV allows it to do).  Simply put, the United States does not appear to consider Russia’s behavior as a material breach of the INF treaty nor want the remedies that label conveys; such a path would actually undercut the stability of the INF treaty’s continued performance for which the United States is pushing.

Second, just because the VCLT remedies are undesirable does not foreclose the United States from all legal leverage in this case. By using the term “violation . . . of obligations” the United States may be invoking a different set of international law rules … those of State responsibility.  Although the United States has been ambivalent to the UN’s Draft Articles on State Responsibility, those articles elaborate a detailed sets of obligations, rights and remedies where a State commits an internationally wrongful act (defined to include a breach of treaty obligations).  The offending State is required to cease (and not repeat) non-compliant behavior and the injured State(s) may engage in “counter-measures” to induce such a return to compliance. These counter-measures may include behavior previously categorized as a retorsion (lawful behavior such as canceling foreign assistance done in response to a prior breach) and a reprisal (behavior that would be unlawful but for the existence of the prior breach).  At present, the types of U.S. responses on offer described in Michael Gordon’s story are likely retorsions, but I assume other measures, including reprisals, could follow if Russia does not respond appropriately.

Taken together, these moves lend support to Bruno Simma and Christian Tams argument in my book that the law of state responsibility has proven more attractive to States than the VCLT’s remedies for treaty breach. That said, I do not mean to suggest that the VCLT is entirely irrelevant to this case.  On the contrary, its provisions on interpretation (Articles 31-33) are likely central to the U.S. claim of a Russian violation.  What’s more, I’d expect Russia to offer its own interpretation to the contrary employing the same interpretative framework (not to mention counter-claims of U.S. violations as described in tonight’s story).

All in all, there’s quite a bit here that should be of interest not just to those who care about arms control and nonproliferation, but international law and international relations more generally.  I’d be interested to hear what others think the U.S. claim suggests and how you see things playing out? Comments welcome.

2013 U.S. Digest Now Available

by Duncan Hollis

Just a quick note for those of you who, like me, have a fondness for the Digest of U.S. Practice in International Law; the 2013 volume is now available on the State Department’s website (see here).   I find the Digest to be one of the great resources on U.S. views of international law; it regularly includes letters, reports, and other documents that are hard (if not impossible) to locate elsewhere. In doing so, it also offers a contemporary glimpse of where the Executive Branch stands on manifold questions of international law and practice. Here’s how the accompanying press release describes this year’s Digest and the series as a whole:

The Department of State is pleased to announce the release of the 2013 Digest of United States Practice in International Law, covering developments during calendar year 2013. The Digest provides the public with a record of the views and practice of the Government of the United States in public and private international law. The official edition of the 2013 Digest is available exclusively on the State Department’s website at: www.state.gov/s/l/c8183.htm. Past Digests covering 1989 through 2012 are also available on the State Department’s website. The Digest is edited by the Office of the Legal Adviser.

The Digest traces its history back to an 1877 treatise by John Cadwalader, which was followed by multi-volume encyclopedias covering selected areas of international law. The Digest later came to be known to many as “Whiteman’s” after Marjorie Whiteman, the editor from 1963-1971. Beginning in 1973, the Office of the Legal Adviser published the Digest on an annual basis, changing its focus to documentation current to the year. Although publication was temporarily suspended after 1988, the office resumed publication in 2000 and has since produced volumes covering 1989 through 2012. A cumulative index covering 1989-2006 was published in 2007, and an updated edition of that index, covering 1989-2008, was published in 2010.

New ILO Treaty on Forced Labor Victims

by Duncan Hollis

With all the talk of the End of Treaties and Treaty Survival, it’s worth noting that the wheels of multilateral treaty-making have not come to a complete stop.  Earlier today, the ILO adopted a Protocol to ILO Convention No. 29, the 1930 Forced Labour Convention.  On paper, the 1930 Convention was a success — it currently has 177 parties.  But it’s also considered outdated within the human rights community, which has emphasized the continuing and significant costs of forced labor in humanitarian and economic terms, necessitating new legal tools to limit or mitigate the effects of this horrible practice.

Some of the 2014 Protocol’s provisions are standard treaty fare on modern global problems — i.e., requiring “national” plans of action and domestic legislation on forced labor issues.  Other provisions reflect the need to update the 84 year old Convention itself (i.e., deleting provisions on forced labor in overseas “colonies”).  The heart of the treaty appears to be Article 4:

Article 4
1. Each Member shall ensure that all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies, such as compensation.

2. Each Member shall, in accordance with the basic principles of its legal system, take the necessary measures to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour.

I’d be interested in reactions from those who follow the ILO and forced labor subjects more closely. Is this Protocol significant in the ongoing efforts to deal with human trafficking and forced labor? How important is the expansion of the right to relief to include migrants who might otherwise be labeled “illegal” via their immigration status?  And is the “entitlement not to prosecute” that significant a requirement?  It presumably still gives State authorities the ability to prosecute forced labor victims engaged in ‘unlawful’ behavior like sex work or drug offenses even if they were coerced into doing so. Thus, it seems more like an aspirational goal than a provision that will mandate changes in State behavior. Comments most welcome.

A Post-Snowden world? Criminalizing Chinese cyberespionage

by Duncan Hollis

Three quick (and thus tentative) thoughts on the BIG news out of the Justice Department a few minutes ago, announcing criminal charges against five officers of the Chinese People’s Liberation Army for hacking various U.S. industries, including Westinghouse and US Steel.  The Justice Department offered fairly detailed descriptions of how the hackers obtained information that had direct economic consequences for US companies, whether in terms of stealing design specs or pricing plans.  As a result, I don’t have much doubt that the evidence establishes behavior violating U.S. cyber crime laws as written. That said, this is still, as Holder himself admitted, an unprecedented move.  It’s not every day the U.S. government charges military officers with criminal behavior that was presumptively authorized by the foreign government itself.  Doing so suggests, not too subtly, that the real criminal here was China:

When a foreign nation uses military or intelligence resources and tools against an American executive or corporation to obtain trade secrets or sensitive business information for the benefit of its state-owned companies, we must say, ‘enough is enough.’ This Administration will not tolerate actions by any nation that seeks to illegally sabotage American companies and undermine the integrity of fair competition in the operation of the free market. This case should serve as a wake-up call to the seriousness of the ongoing cyberthreat. These criminal charges represent a groundbreaking step forward in addressing that threat.

For more background, you can watch the press conference here or read the prepared statements by Holder and others.

My first reaction was that these charges aren’t really about prosecuting the named officers, but of signaling to the world that the United States wants to change the status quo when it comes to State-sponsored cyber-exploitation.  The fact that States engage in cyberexploitation has long been widely known, but so far, the prevailing response has been a shrug of the shoulders — the theory being that spying cannot be regulated away so why bother trying.  These charges suggest a political effort, however, to do just that — i.e., to try and change the volume or nature of State-sponsored cyber-exploitations at least when it comes to impacts on private commercial actors.  I say a “political effort” since I very much doubt these charges will amount to much within the U.S. legal system.  Simply put, these five officers are not going to appear in a US courtroom to face the charges against them. I suppose it’s possible (although implausible) that China could express surprise at the U.S. evidence and announce its own investigation with some lip service about shutting rogue actors down or holding accountable those responsible. But, even in such a case, I can’t see China handing them over to the United States.  Much more likely, I suspect will be Chinese protestations of “trumped-up” charges or “false” evidence by the U.S. Government.  As such, assuming they don’t vacation abroad, these officers are unlikely to face any negative consequences; on the contrary, I’d bet they’ll probably be lionized in some ways at home.

My second reaction was that of a law professor, asking in a hypothetical world where these officers somehow did end up before a U.S. court, what would happen then?  I assume there’d be a claim by the defendants of sovereign immunity and, for the reasons stated above, I doubt the Chinese government would dispute such immunity.  This would, in turn, raise interesting questions about whether the Foreign Sovereign Immunities Act would grant immunity from prosecution to these officers or whether the Justice Department could successfully invoke one of the statute’s exceptions. Based on the repeated references in this morning’s press conference to the ‘commercial’ nature of the Chinese cyberexploits, I’d guess DOJ’s theory is that it can proceed under the FSIA’s commercial activities exception, which affords federal jurisdiction to cases “in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”  I know many of our readers are expert in sovereign immunity issues, so I’d be interested in your reactions — do these officers have a legitimate claim for sovereign immunity?  Or, might they invoke some other status-based immunities and with what likely results?

My third reaction was that these charges represent the official start of a Post-Snowden era. For the better part of a year, Snowden’s revelations have dominated almost all discussions of cyber activities involving the United States.  To be sure, the United States has tried to rebut some of the allegations or recast others in a more positive light, with pretty mixed (some might say poor) results.  Indeed, every time, the United States tried to move on, there was some “new” revelation waiting in the wings to forestall that effort.  In recent weeks, however, Snowden-related disclosures have slowed, while at the same time the United States has had some diplomatic successes (see, e.g., the NETmundial final statement ).  Thus, there’s certainly space today that wasn’t present a few months ago for the United States to try and refocus the conversation.  I wonder if this explains the timing of these charges.  After all, U.S. complaints against China were a central plank in U.S. cyber-policy pre-Snowden, so it’s not surprising they’ve been looking for an opportunity to get back on the offensive when the circumstances were ripe for it.  Whether this offensive will be successful remains, of course, to be seen.  It’ll bear close watching how China responds to these charges, both publicly (i.e., in defending its officers or launching counter-charges against US officials) and privately (will there by an escalation of cyber operations by China or others).  But whatever China does, I suspect we’re going to witness renewed attention to the question of whether all cyber-espionage is really the same (i.e., can we distinguish, as the U.S. urges, between State-sponsored hacking for national security interests vs. State-sponsored hacking for economic gain).  I’d hope, moreover, that part of that conversation will involve the question of what role law can play, if any, in regulating cyber-espionage, whether as a matter of domestic or international law. 

Whither the (U.S.) International Law Academic?

by Duncan Hollis

The state of the international law academy in the United States is undoubtedly strong.  International law and its progeny are no longer marginalized pieces of the law school curriculum as they were for much of the 20th century.  U.S. Law Schools regularly offer international law, with a fair number now doing so in the first year (whether as a required course or an elective).  Nor is the subject limited to a one-off class; schools often try to cover the more fragmented landscape with multiple offerings, from human rights to trade, from arbitration to international environmental law.  Given this proliferation of courses, it’s not surprising to see a similar growth in the number and prominence of international law academics (there is, though, a chicken and egg question here as to which came first).  Today, many schools have moved beyond the requisite “one” international law professor to incorporate faculty with a broad range of international and comparative research interests and experiences.  By way of example, here, at Temple, depending on how you count, we have 11-13 international law faculty.

All that may come as cold comfort, however, to those looking to become international law professors at a U.S. law school in the coming years.  It’s no secret that the U.S. legal education market is in a rather dramatic contraction right now.  As applications tumble, schools are cutting the size of their entering classes, and in some cases their existing faculty.  Last week, a great post by Sarah Lawsky (UC-Irvine) provided a wealth of comparative data on the impacts the market shifts are having on tenure-track hiring for U.S. law schools.  The picture is not a terribly pretty one – from a high of 167 junior faculty hired in 2008 to 73 this year.  I don’t know exactly how many of these 73 hires were in international law, but I’d guess not many.  As schools re-trench, many will focus on hiring in domestic areas because that’s where the perceived jobs are for students (the supply for potential international lawyers having long outstripped the demand, at least for those with a U.S. J.D.).  I’d welcome data that upsets my expectations, but, for now, I’m betting that international law teaching jobs (which were always pretty competitive) are now going to be very hard to get.

This situation leads me to ask three questions.  For starters, is there anything aspiring international law academics can do to actually increase their chances of landing a job in the field? For example, I was asked by a PhD candidate at King’s College London a few weeks ago whether having a PhD in international law would be valued by U.S. law schools given how some law schools have been actively seeking to hire law professors who have PhDs.  My answer, I’m afraid, was not terribly encouraging.  A PhD without a J.D. will raise hackles on many faculties who want law professors to be lawyers.  And where a candidate has both a PhD and a J.D., the pedigree of both degrees will matter more than the presence of the degrees themselves.  Moreover, I’d hazard to guess that other factors may be more important to hiring committees, namely prior work experience in international law (which I think still matters), publications with an emphasis on the “s”, and having had a prior fellowship.  Indeed, according to Lawsky, 84% of the 2014 hires came from a fellowship program (in contrast, 19 candidates had PhDs and none of these were in international law).  And, of course, networking and ‘who knows you’ may actually be the most important aspects of a candidacy in a market that’s become so small.

Given the harsh hiring reality, my second question is what does the future hold for international law teaching, at least in the United States?  Will prospective candidates simply keep their day jobs and avoid testing the market altogether? Will folks take a “wait and see” attitude, hoping for a rebound in interest and hiring in 3-5 years?  Or, will candidates go abroad to try and teach? My sense is that the market in Europe for international law teaching has not suffered the same downturn currently plaguing the United States, and thus there may be more opportunities there. Similarly, I know from a number of post-docs who I’ve worked with that China, Singapore and other areas in the Far East are paying more (not less) attention to international law as well. I’d be interested to hear from more knowledgeable readers what the state of the European and Asian markets are for international law academics (and whether there are other teaching markets potential candidates should consider).

Third, and finally, I wonder if it’s a good or bad thing to have fewer new international law professors entering the profession?  I’m inclined to look at it negatively on the assumption that international law work will continue to rise, not just as a stand-alone profession for lawyers, but as a component of the work all lawyers do in an increasingly globalized world.  As such, there should be sufficient faculty to introduce students to this area and the legal work it involves. Others, however, I suspect might suggest the pendulum has swung too far and that U.S. law schools are devoting too much time and energy to international law in both curricular and hiring contexts, saying that the on-going re-adjustment is therefore a good outcome.  Still others might argue that the issue is idiosyncratic; as law schools start to move away from uniform aspirations, a case could be made that certain law schools should become more focused on international law by virtue of their history, geography, or market placement at the same time as other law schools’ circumstances make the case for devoting less attention to international law. 

What do readers think?  Is there any hope for someone trying to get a U.S. law teaching job in international law in 2014-15?  Are there alternative places candidates should look if, in fact, U.S. law schools are hanging out ‘no vacancy’ signs in international law?  And, how worried should we be about this situation, whether in the short, medium, or long-term?

[UPDATE:  With a hat tip to Peter Spiro, it seems Sarah Lawsky did track hiring candidates by subject matter, so we can actually see how many of this year’s lucky hires expressed an interest in international law.  By my count it looks like there are 2 candidates who identified international law as their primary area of interest and one who did so for international trade.  Three other candidates identified international as a third or fourth area of interest.]

The End of Treaties? The End of History?

by Duncan Hollis

AJIL Unbound, the new on-line companion to the American Journal of International Law, has begun to publish short essays this week for its on-line Agora, The End of Treaties? (see the original call for papers here). So far, they have posts up by Tim Meyer (‘Collective Decision-making in International Governance‘) — and Joel Trachtman (‘Reports of the Death of Treaty Are Premature, but Customary International Law May Have Outlived Its Usefulness‘).  Additional posts will be rolled out over the course of the week here.

As for me, I regard this ‘End of Treaties?’ idea as analogous to Francis Fukuyama’s famous End of History thesis.  Like Fukuyama’s piece, I think the idea here is more an argument about the future of treaties as opposed to either an historical or empirical claim that treaties no longer matter much to international law.  Just as it’s hard to argue that history ended with the Cold War, it’s hard to make the case that we’re now witnessing the end of treaties.  On the contrary, there are more treaties in force today than ever before in human history. The United States has more than 10,000 treaties in force and the UN Treaty Office has registered more than 64,000 treaties (this notwithstanding widespread noncompliance by States with their obligation to register treaty commitments).  The breadth and depth of these treaty commitments is equally striking — one is hard pressed to find an international law issue today where there is not some treaty that speaks, directly or indirectly, to the question.  

Perhaps the “End of Treaties” idea should emphasize the decline in treaty-making as opposed to treaties themselves?  Again though, I’m not sure there’s evidence to support the claim.  True, the number of major multilateral treaty negotiations has fallen off in recent years (at least when compared to the late- and immediate- post Cold War periods) while other negotiations appear stalled. But it’s not clear to me that we’re heading to some definitive end-point of obsolescence rather than witnessing an oscillation over time in terms of when and how treaty-making gets done. Nor am I persuaded by the Senate’s recent recalcitrance on treaty-making.  For starters, it’s actually a pretty small piece of U.S. treaty-making; I believe Senate advice and consent treaties in recent decades constitute only about 7% of the international agreements concluded by the United States. And, it’s not like the Senate has refused to give advice and consent entirely; 2013 saw 4 treaties get through.  This is not to say that the Senate process is working well right now — it’s clear not — but rather to suggest it may not yet be time to write that process off completely.

Finally, I do not think one has to find that treaties as a form of international commitment are necessarily weakened by the emergence in recent years of all these new forms of what Tim calls ‘collective decision-making’.  I don’t accept the idea that we’re in a zero-sum game where every time we use a political commitment or code of conduct, there’s one less treaty going forward.  Instead, I wonder if the proverbial pie may be expanding with the expansion in forms of international cooperation; the future (or indeed, even the present) may bear witness to more treaties AND more political commitments, international institutional norm-making, soft law or what have you.  Thus, Tim and I may part ways a bit here as a descriptive matter since he’s inclined to think there’s been some decline in treaty usage.  I’d concede though that there’s research that we could do to settle the trade-off questions.

In the end, I may not be in agreement with the Agora’s theme, but I applaud its attention to the treaty topic.  For me, treaties deserve more attention, not because they are in some form of decline, but rather because of how critical they have become to the functioning of the modern international legal order.  So, I am looking forward to thinking more about Meyer and Trachtman’s posts and reading the remaining contributions later this week.  I trust it’s the start of a great conversation.

NETmundial, Borders in Cyberspace, and a Duty to Hack

by Duncan Hollis

Last week’s NETmundial conference serves as a reminder of just how much the nature of cyberspace remains (at least theoretically) undetermined.  We still can’t agree on what kind of resource cyberspace “is”:  Is it a global public good as Sir Tim Berners Lee proclaimed (i.e., a res communis) or just a collection of technology subject to sovereignty regulation like so many other resources?  This theoretical divide may help explain the continuing back and forth between multi-stakeholder governance (which includes, but does not privilege, a role for States) versus the multilateral governance project (which most certainly does).  NETmundial may have been a net plus for multi-stakeholder proponents, but I’m much less sanguine that it represents an end to claims that cyberspace can — and should — be regulated primarily by government controls over internet resources (for more on the details of NETmundial and its final statement see Milton Mueller’s take-away here).

My skepticism about how international law will draw borders for cyberspace governance leads me to think about other roles borders can play in cyberspace — that is, using international law to draw lines separating acceptable from unacceptable behavior, permitted conduct from required conduct, etc.  I’ve drafted a new chapter that, in the context of cyber war, examines both the ways we draw law from borders and borders from law in cyberspace.  I critique the status quo on both theoretical and functional grounds, concluding that we should seek to start a new process not just for constructing governance regimes, but normative ones as well.  Consistent with the book’s central focus on cyber war, I proffer a case-study for such an approach with respect to armed conflicts, arguing international humanitarian law should adopt a Duty to Hack.  My idea is that, even though it does so only occasionally now, international law should regularly require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives.  You can download a copy of the paper here on SSRN.

For those looking for more details, here’s the abstract:

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

 

Engaging the Writings of Martti Koskenniemi

by Duncan Hollis

MK2r_hollis (2)

Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants — Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.  

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels.  These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent.  Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal.  As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

Now in Paperback: The Oxford Guide to Treaties

by Duncan Hollis

Just a quick note to flag for interested readers that Oxford has released a paperback version of my book, The Oxford Guide to Treaties.  Happily, it is significantly cheaper than the hardback version — it’s listed for under $60 on Amazon right now.  I hope that this edition will interest non-institutional buyers for whom the earlier price tag was a bit steep. See here and here for additional links.